A Comeback but No Reckoning

Judge Alex Kozinski retired in the wake of sexual harassment allegations against him. He’s now making his way back.

By Leah Litman, Emily Murphy and Katherine H. Ku

The authors are lawyers who have publicly accused Mr. Kozinski of misconduct.

Aug. 2, 2018

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Judge Alex Kozinski in 2017, before he resigned from the Court of Appeals for the Ninth Circuit.CreditCreditJustin Sullivan/Getty Images

One of the many questions raised by the #MeToo movement is how society managed to fail so many women for so long. If we sidestep that question, we’re at risk of continuing to fail them again, as the recent case of a retired federal appeals court judge illustrates.

Last December, Alex Kozinski stepped down from the United States Court of Appeals for the Ninth Circuit after more than a dozen women accused him of sexual harassment and other misconduct. A judicial panel began an investigation, but when Mr. Kozinski resigned, it closed its inquiry, concluding that once the judge stepped down from the bench, it lacked the “authority to do anything more.”

We are three of the many women who publicly accused Mr. Kozinski of misconduct. We are also lawyers, and our allegationsweremade after careful consideration and with supporting corroboration. Yet we cannot now point to findings of an official investigation that establish validated, agreed-upon hard truths of what happened.

The failure to pursue the truth is one of the failings of this story. Because of it, Mr. Kozinski has found it disappointingly easy to return to the public stage less than seven months after he resigned.

In recent weeks, Mr. Kozinski has written opinion pieces for a legal newspaper and a legal blog and was interviewed by a public radio station in San Francisco about what it’s like to be a judge. None of these outlets initially mentioned the circumstances surrounding his retirement.

The lack of a formal process offers a simple, if hollow, way to discount the accusations against him — as mere allegations, rather than the first step toward a complete truth. That probably influenced the editor who “considered extensively” whether to publish Mr. Kozinski’s thoughts and discussed it with other lawyers. It also may have influenced the radio host, who said he felt the harassment and misconduct issues were “not relevant” to the subject of the interview, which was what it is like to be a judge.

When The Washington Post broke the story of the first wave of allegations against Mr. Kozinski, his initial response was to point out that one of his accusers, a former law clerk, had become a romance novelist who wrote about “torrid sex.” He also said, “If this is all they are able to dredge up after 35 years, I am not too worried.”

The judiciary initiated its investigation, and more accusations quickly followed. Mr. Kozinski resigned within 72 hours of the second round of allegations. When he did, he seemed to suggest that some oversensitive women who worked for him (who face “special challenges and pressures” in the workplace) failed to understand some good-natured jokes (his “broad sense of humor”). He offered this narrow, tepid apology: “It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize.”

He never addressed the allegations of female lawyers, law students or even a fellow federal judge who reported kissing, touching and fondling.

We supported the judicial investigation into the accusations against Mr. Kozinski. As lawyers, we understood the importance of fact-finding in uncovering hard truths, and the legitimacy that fair processes afford. So has Mr. Kozinski. In a dissent in an ethics case, Mr. Kozinski wrote that “fully and fairly” investigating and disciplining a fellow judge is uncomfortable, but urged his colleagues not to shy away from the important task, for the sake of judicial integrity. Now, through his lawyer, Mr. Kozinski has said that he does not fear the results of an inquiry, but is “unwilling to put the people and the institution he cared about through that.” (Mr. Kozinski receives his federal pension.)

#MeToo is about more than stopping harassment. It should also be about addressing the ways society may allow men to get away with misconduct.

Sexual harassment often persists because third parties are silently complicit in it. #MeToo requires some retrospection from people who are not harassers themselves. What should people do when there are rumors that a friend, colleague or mentor acts inappropriately toward women in professional settings? And now, what should people do when there are corroborated allegations?

The absence of a formal reckoning does not mean we should continue on like nothing happened at all. Looking only forward, without reckoning with the past, risks failing women in the profession, as men who have been accused of serious misconduct in the workplace are permitted to return without so much as a caveat.

Where formal processes fail or are subverted, the legal community should insist on informal reckonings before any rehabilitation, rather than turn a collective blind eye to allegations of harassment.

Those affording Mr. Kozinski a public platform now should at the very least consistently acknowledge that he was accused of sexual harassment by many women. Institutions may also want to consider breaking their silence; law schools, legal organizations and the bar could make clear that they will not tolerate harassment from anyone, regardless of his or her status.

To usher Mr. Kozinski back into professional circles without qualification implies a deference that is stunning in light of the circumstances of his retirement. That choice paves the way for a next step — perhaps a speaking engagement on a panel or at a conference or a law school, or an opportunity to consult with a law firm and interact with junior associates. That process may already be in the works; in his radio interview, Mr. Kozinski talked about his plan to teach. Formerly a frequent presence on law school campuses, Mr. Kozinski was specifically accused of thumbing a law student’s breast, among other allegations.

The community’s seeming assent to Mr. Kozinski’s return to legal circles is a particularly visible example of its paralysis in light of the #MeToo movement. As The Wall Street Journal recently reported, the profession has failed to respond effectively even to sexual misconduct that has apparently been verified and censured through formal investigations.

Of all the institutions rocked by the #MeToo movement, the legal community can do better, and should.

It took the work of many courageous women to expose just a sliver of the failures that led to #MeToo. If that work can be so easily erased, if powerful individuals and personal friendships in elite legal circles prove more important than uncomfortable reckonings, our society and the legal profession will continue to fail. Twenty-three other women collaborated with us on this article. We are committed to do what it takes to correct the failures that contributed to #MeToo. But #MeToo is about all of us. We ask others to think about what role they might have to play as well.

Leah Litman is an assistant professor of law at the University of California, Irvine; Emily Murphy is an associate professor of law at the University of California Hastings College of the Law; and Katherine H. Ku is a partner at Wilson, Sonsini, Goodrich & Rosati.

The authors collaborated with the following women on this article:

Heidi S. Bond, novelist

Charlotte Garden, associate professor, Seattle University School of Law